People v. Davies CA5

INTRODUCTION

Appellant James Clinton Davies surreptitiously recorded a conversation he had with his local police chief while they were in the chief’s office. A police lieutenant was also present, and appellant discussed his own uncharged criminal matter with the chief. Unbeknownst to the officers, appellant recorded the conversation as a video on his cellular phone. A short time later, appellant posted the video on Facebook. A jury convicted appellant of recording a “confidential communication” in violation of Penal Code section 632, subdivision (a).1 Following this felony conviction, appellant was placed on formal probation for three years.2 Appellant raises a number of issues in the present appeal, including alleged instructional errors and a violation of his rights under the First Amendment of the United States Constitution.3 We agree with appellant that multiple prejudicial instructional errors occurred, which require reversal of his judgment. The court did not make it clear that, in order to establish guilt, the prosecution was required to prove that appellant intended to record a confidential communication. The court also erroneously instructed that a mistake of fact was…